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COMMONWEALTH PENNSYLVANIA v. JOSEPH BERTHESI (02/03/86)

filed: February 3, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
JOSEPH BERTHESI, APPELLANT



Appeal from the Order of the Court of Common Pleas of Philadelphia County, Criminal Division at No. 67-11-1335-37.

COUNSEL

David S. Wolf, Philadelphia, for Berthesi, appellant.

Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.

Brosky, Popovich and Roberts, JJ.

Author: Popovich

[ 350 Pa. Super. Page 385]

This is an appeal from the order of the Court of Common Pleas of Philadelphia County denying the Post-Conviction Hearing Act*fn1 (PCHA) petition of the appellant, Joseph Berthesi. We affirm.

On December 27, 1967, the appellant pleaded guilty to conspiracy, aggravated robbery, simple assault and battery involving one Robert Timm. The victim was restrained, beaten and robbed of eleven dollars by a trio of individuals, one of whom was the appellant. As a result of the attack, the victim was treated for cuts and bruises at the hospital and lost a day's wages.

The appellant took the stand, admitted to stopping the victim and receiving eleven dollars taken from the victim by one of the other assailants.

During the plea it was revealed that in 1964 the appellant was convicted of burglary and passing worthless checks. Also, the court noted that there were no other convictions, "but plenty of trouble." Nonetheless, the court decided to sentence the appellant to five years probation for aggravated robbery and suspended sentence on the remaining charges. No motion to withdraw the plea or direct appeal was filed.

On June 17, 1970, the probation was revoked and the appellant was committed to the State Correctional Institution at Graterford for eighteen months to three years. No appeal followed. However, on July 23, 1981, fourteen years after his guilty plea and eight years following the completion of his sentence for the 1967 robbery, the appellant filed a pro se PCHA petition claiming the ineffectiveness of guilty plea counsel and the denial of his right to appeal. An

[ 350 Pa. Super. Page 386]

    amended PCHA petition, filed by appointed counsel unassociated with guilty plea counsel, reaffirmed the appellant's contention that prior counsel was ineffective in not informing the accused "at any time of his right to appeal."

The Commonwealth's answer to the amended petition asserted: First, the allegations had been waived or finally litigated. Second, the unexplained delay between the plea and the PCHA petition barred review. Third, the petitioner's failure to allege that he was "currently suffering any civil or criminal consequence from his 1967 conviction", when coupled with the fact that his sentence had already been served, precluded him from seeking relief. At the PCHA hearing, save for the waiver and ...


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